DOMA/Prop 8: States Win, People Lose

The Supreme Court’s rulings Wednesday on the Defense of Marriage Act (DOMA) and Proposition 8 are being viewed as a limited victory for advocates of same-sex marriage–and also for federalism. The Court’s decision to strike down DOMA means that a federal definition of marriage cannot trump a state definition, and that same-sex marriages in some states will be honored by others. Its decision to refuse to rule on Prop 8 means that lower court rulings against it will stand, effectively legalizing same-sex marriage in California.

(Update: There seems to be confusion as to whether the Supreme Court struck down all of DOMA, or just Section 3, the part dealing with federal recognition of marriage. Though Justice Kennedy specifically says that only Section 3 is at stake, he declares that DOMA as a whole violates the Constitution. That may leave some ambiguity–temporary at best–about whether all states must recognize same-sex marriages from other states. If that part of DOMA, Section 2, is still good law, it will not be for much longer, if Kennedy’s logic holds.)

Yet it is a curious kind of federalism that empowers the states while taking power away from the people. In the Prop 8 case, a majority of California voters chose to define marriage as between one man and one woman–and when the state courts held otherwise, the governor and attorney general refused to defend Prop 8 in court. As Justice Kennedy–who wrote the majority opinion striking down DOMA–suggested in his dissent in the Prop 8 case, that threatens the principle that “Freedom resides first in the people.”

Effectively, the Prop 8 decision means that a governor and attorney general may defeat a referendum simply by refusing to enforce it, against the will of the people. Combined, the two decisions today mean that those who support traditional marriage have a huge uphill battle: they (Update: likely) cannot deny recognition to same-sex marriages from other states, and elected officials can simply refuse to defend traditional marriage laws or referenda in court. Only if social conservatives are elected to highest state office will their efforts succeed.

That cuts both ways, theoretically: it is possible that a conservative governor and attorney general could use the Prop 8 decision to decline to defend a pro-same-sex marriage law in court. But there is almost no way that a same-sex marriage law would face the same legal challenges that Proposition 8 did. So the federalism in the DOMA and Prop 8 decisions is illusory–as much a fiction as the federalism in the Obamacare case, which allowed states to decline Medicare funding but subjected their citizens to the individual mandate.

The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” There is a reason that the Framers of the Constitution included both the people and the states in that admonition. In the DOMA/Prop 8 ruling and in the Obamacare ruling, the Roberts Court has effectively upheld only part of that Amendment. Yet it is a false federalism that privileges the states’ powers over the people’s rights.